The investigation

The complaint

1. Using our powers to investigate matters coming to our attention during an investigation, we opened this investigation to consider whether fault by the Council in its handling of homelessness has caused injustice to others who have not complained. Specifically:

• the Council's practice of closing cases where the applicant does not provide all required information within 14 days; and

• the advice, information, and support provided to applicants served a notice to leave their private tenancies.

Legal and administrative background

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. We refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

3. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)

4. We make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

How we considered this complaint

5. We made written enquiries of the Council and considered its response along with relevant law and guidance.

6. We referred to our Guidance on remedies, which can be found on our website.

7. We gave the Council a confidential draft of this report and invited comments. The comments received were taken into account before the report was finalised.

What we found

Background

8. The Council’s website asks people who are homeless or at risk of homelessness to complete an online form called a housing advice request.

9. When an applicant submits this form, the Council sends them a “triage letter”. This letter sets out the steps the Council requires an applicant to take before their case is allocated to an officer. When we started our investigation, this letter gave applicants 14 days to complete the actions before closing their case. At the time of writing, this is now 28 days.

10. The steps are:

1. apply to join the housing register “even if you are aware you are not eligible to join”;

2. provide all the required documents within seven days of completing the form under step 1;

3. complete an online income and expenditure form; and

4. if renting privately, provide a copy of the tenancy agreement and any notice to quit.

11. The triage letter then says applicants must get back in contact with the Council to notify it that they have completed all required steps. It is only “[i]f we are satisfied the steps have been completed” that the Council allocates the case to an officer.

This investigation

12. We opened this investigation following our investigation into another complaint (22 016 011), where we found fault with the Council. We were concerned about the Council’s practice of requiring applicants to provide specific and extensive information before it considered they had “made a homeless application”. We thought other people might have experienced an injustice as a result.

13. We were also concerned about what the Council’s “triage letter” told privately renting tenants. The version of the letter in use at the time said:

“Please note that if you leave your home before a Possession Order is granted by the Court and you seek to rely on Local Authority accommodation then it is likely you will be found to have made yourself intentionally homeless and the Authority will have no duty to provide permanent accommodation.”

14. We thought this approach might have caused injustice to tenants as it suggested a blanket approach which is not in line with the Homelessness Code of Guidance. The Code is government guidance on how councils should deliver their homelessness duties. Councils must have regard to the Code.

15. The Council has since updated this letter. Since April 2024, it sends a different version of the letter which makes no such explicit statement about intentional homelessness. It also now sends one of a number of “closure letters” when an applicant does not complete the steps in the triage letter within 28 days. This closure letter does not have a statutory right of review.

16. In response to our enquiries, the Council provided details of all the homeless cases it closed at triage in the six months up to May 2024. This was 424 applications. Of these, the Council provided copies of 326 housing advice request forms.

17. The Council also provided details of its interventions for a three-month period in cases where an applicant was under a notice to leave a private tenancy.

Conclusions

Private tenants

18. The Code of Guidance says it is unlikely to be reasonable to continue to occupy a private rented tenancy beyond the expiry of a notice to quit. (Code of Guidance 6.35) It is highly unlikely to be reasonable to continue to occupy beyond the expiry of a court order granting possession. (6.36)

19. The Code of Guidance says councils should have regard to various factors in deciding at what point it becomes unreasonable to remain and therefore the applicant becomes homeless and owed the relief duty. This includes the wishes of the tenant, the impact on the landlord, the financial impact of court action and/or rent arrears on both the landlord and the tenant, and the burden on the courts of unnecessary proceedings. (6.33)

20. The evidence shows that tenants owed the prevention duty by the Council do remain in private rented tenancies beyond the expiry of a possession order. However, the evidence also shows the Council liaises with landlords and considers whether there are rent arrears or other impacts of remaining in the property. Where there are such issues, the Council provides interim accommodation if it has reason to believe the applicant has a priority need.

21. The evidence shows most applicants who remain in their tenancies secure a permanent move into social housing before eviction. This avoids families moving into bed and breakfast accommodation or other emergency accommodation and means they need only move once and in a planned way.

22. Overall, we do not find fault with the Council on this part of the complaint. Its practice does not show the blanket approach suggested by the triage letter. Rather, the Council considers the circumstances of individual cases. However, the applicants who remain in their tenancies will likely face court costs and so it is important that the Council’s records show it has considered the impact on the tenant as well as the landlord before deciding it is reasonable for them to remain in their tenancies.

Triage process

23. The Council has a duty to make inquiries and decide what, if any, further duty it owes if it has reason to believe someone might be homeless or threatened with homelessness within 56 days. (Housing Act 1996, s184(1)) An applicant does not have to fill in a specific form or provide specific information for this duty to arise. “Reason to believe” and “might be” are low thresholds.

24. Some of the information the Council requires from the steps in its triage letter, such as copies of notices, is relevant to an initial decision about whether and what duty the Council owes. Some identification documents are necessary for the Council to satisfy itself of the applicant’s eligibility. But much of the information required, which includes bank statements, five-year address history, and other documentation, is not necessary for the Council to decide if it owes a duty.

25. While it is appropriate for the Council to expect applicants to provide information as part of its inquiries, the duty to make those inquiries is on the Council. The duty arises when it has reason to believe an applicant might be homeless or threatened with homelessness. Not when it decides the applicant has jumped through all the right hoops.

26. The Council’s process of closing a case where an applicant fails to complete all the required steps, regardless of the content of their application or the other information it has about their circumstances, is fault. The evidence shows that often the Council has engaged in further correspondence with, met with, and even visited the applicants. However, if they do not complete all the steps in the triage letter, the Council nonetheless closes their case.

27. This demonstrates an overly rigid approach which amounts to gatekeeping and is fault. The Council is artificially limiting the number of homeless applicants it owes a duty by putting unnecessary barriers in their way.

28. Of the 326 housing advice request forms we reviewed, we found that the information in the form alone, on balance, met the low “reason to believe” threshold in 216 cases. This is more than two-thirds of the applications we reviewed. This means there were 216 people to whom the Council had a duty to make a decision and could not just close their case. Such decisions must be in writing and carry statutory rights of review and then appeal to court. Despite this, the evidence shows the Council made a proper decision in only 22 cases.

29. 45 people filled in more than one form in the same six-month period, some as many as four times. This indicates they continued to need and want help with their housing. Three of the forms specifically mention having completed a form previously and their case being closed.

30. It is possible that not all the people who completed the form would have pursued their application given the opportunity. The Code of Guidance recognises this and says councils should have procedures to deal with withdrawn applications and cases where someone does not stay in contact. The Code says “it would be reasonable to consider an application closed where the applicant has not responded to any form of contact for 56 days or longer”. (Code of Guidance 18.14)

31. Of the 424 cases the Council provided information for, only 60 were closed after more than 56 days.

32. Where it has reason to believe someone might be eligible, might be homeless, and might be in priority need, the Council has a duty to provide interim accommodation while it makes inquiries. (Housing Act 1996, s188(1)) The Council’s gatekeeping means it is likely it is failing to meet this duty. This is fault. More than 30 of the applications mention domestic abuse or other serious risks, for example. The Code of Guidance is clear that in cases of domestic abuse, the Council should provide interim accommodation immediately, an “accommodate first, ask questions later” approach which prioritises victim safety. (Code of Guidance 21.25)

33. The Council’s approach also means it is missing out on opportunities to prevent homelessness. The earlier it starts working with tenants asked to leave their private tenancies, the more likely those tenants are to move before they become homeless. The Council is missing opportunities to negotiate with landlords to prevent evictions, extend tenancies, and address rent arrears.

34. Applicants told the Council about disabilities and mental health conditions. Many of the housing advice request forms indicate the applicant is currently rough sleeping. Others contain details of circumstances such as hospitalisation or incarceration. People in such situations can find it difficult or impossible to provide documents, access online forms, or read and respond to emails. The evidence shows no consideration by the Council of such difficulties. It nonetheless closed such cases if they failed to complete all the required steps.

35. The Council’s fault has, therefore, caused significant injustice to over 200 people in six months. The extent of the injustice will depend on the circumstances of individual cases and what, if any, duties the Council should have accepted. But at the very least, each of the applicants identified should have received a decision which gave them statutory rights of review and appeal.

36. This fault will continue to cause injustice to others in future unless the Council changes its approach.

Recommendations

37. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

38. It is not proportionate or realistic to expect the Council to contact every applicant we have found should have received a reviewable decision. Some will no longer need help. Others made further applications and had duties accepted. Others still may have withdrawn their applications. Rather than remedy past injustice, therefore, we have sought to address current injustice and ensure that the Council does not continue to cause this injustice in future.

39. To remedy current injustice, within six weeks of the date of this report the Council should:

• review the housing advice request forms and any other correspondence with current applicants open at triage to identify all cases where there is reason to believe the applicant might be eligible and homeless or threatened with homelessness. In every such case, proceed with inquiries to decide what, if any, further duty the Council owes and ensure it issues a decision with review and appeal rights; and

• contact all applicants whose case it closed in the last 56 days for failing to complete the steps in the triage letter and invite them to continue their applications.

The Council should ensure it deals with any complaints from others affected in line with our findings and remedy individual injustice in line with our Guidance on remedies.

40. To prevent future injustice and improve its services, within three months of the date of this report the Council will review and amend its triage process to ensure it:

• is no longer gatekeeping by demanding applicants meet excessive, unnecessary, or overly rigid requirements before it will consider their cases;

• does not take a blanket approach to closing cases after a set period, regardless of the information it has about the individual circumstances;

• considers the information it has in the housing advice request form and other correspondence in all cases and makes a decision about what, if any, duty it owes in those cases where it has reason to believe the applicant might be eligible and might be homeless or threatened with homelessness;

• notifies applicants of this decision in writing, telling them about their statutory right to request a review; and

• offers interim accommodation immediately to all applicants it has reason to believe might be eligible, homeless, and in priority need.

41. The Council has accepted these recommendations.

Decision

42. We have completed our investigation. There was fault by the Council which caused injustice to people who had not complained to us. The recommended action is a suitable remedy for current injustice and prevents future injustice.

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